FAA Publishes Its Disposition Of Comments On Flightdeck Security Rules

On April 26, 2005, the FAA published its Disposition Of Comments On Final Rule regarding the flightdeck security rules (e.g. reinforcement of cockpit doors etc.). The FAA discusses the history of the rule and subsequent amendments, the comments it received to the rule and its responses to those comments. The comments addressed such issues as cargo operations, applying the rule more broadly, the performance standards test methods, inflight access to the flightdeck, and the availability of advisory material and the FAA's assessment of the cost of the rule, to name a few.

The comments and responses make for interesting reading. In the end, the FAA concluded that "[a]fter consideration of the comments submitted in response to the final rules and in view of actions being implemented by the TSA for safe air cargo operations, the FAA has determined that no further
rulemaking action is necessary." You may review the public dockets, including the rules and comments here using the simple search and entering docket numbers 11032, 12504 and 15653.

The FAA today published a Notice extending the comment period for the Cockpit Voice Recorder and Digital Flight Data Recorder Nptice of Proposed Rulemaking ("NPRM") published on February 28, 2005. This NPRM was discussed in my February 25 and 28 posts. The extension is a result of a request from the Aerospace Industries Association to extend the comment period for the NPRM. AIA felt, and the FAA agreed, that the original 60 day comment period was insufficient given the detail and complexity of the NPRM.

Comments are now due on or before June 28, 2005. Comments may be submitted by any of the methods contained in the Notice or the original NPRM. For more information regarding the NPRM, contact Timothy W. Shaver, Avionics Systems Branch, Aircraft Certification Service, AIR-130, Federal Aviation Administration, 800 Independence Avenue, SW., Washington, DC 20591; telephone (202) 385-4686; facsimile (202) 385-4651; e-mail tim.shaver@faa.gov.

Posted by Greg

What Happens To Your Certificate After Suspension Or Revocation

If a certificate issued by the FAA, whether airman, medical, mechanic, commercial etc., is suspended or revoked, what happens next? Is the suspension or revocation the end of the story? Does the certificate holder have further obligations regarding the certificate after suspension or revocation? For the answers to these questions, read my latest article on the subject here.

On April 15, the owner/mechanic of Raco Helicopters Corp., based at Monmouth County NJ airport in Farmindale, New Jersy plead guilty to felony charges of making false statements related to aircraft maintenance. The plea was entered during the second day of a jury trial.

The owner/mechanic's Airframe and Power plant certificates were revoked in 2001 and 2003. However, a subsequent investigation performed by the Dept. of Transportation Office of Inspector General ("OIG") with the assistance of the FAA revealed that the owner/mechanic continued to perform work during that time. Apparently he continued to perform helicopter maintenance without the requisite supervision and he falsified inspection dates even though he was not certified to perform inspections. The OIG reported the plea here.

This should hopefully dispel the incorrect assumption that the FAA only has the power to take your certificates, and nothing more. It is also another example of the fact that you may have more than just your certificates to lose if you operate in disregard of the applicable FAR's. It is an unfortunate result for this owner/mechanic. However, it has hopefully made the industry safer by sanctioning someone from operating in apparent disregard of the FAR's and by setting an example.

Posted by Greg

April 22, 2005

NTSB Overturns EAJA Attorneys Fees Award

The NTSB recently reversed an ALJ's award of attorneys fees to a respondent in an enforcement action. In the underlying enforcement action upon which Application of Porterfield, Alava and Khoyan was based, the airmen were charged with falsification prohibited by 14 C.F.R. §§ 61.59(a)(1) and (2), and with lacking the good moral character required by § 61.153(c)4 of the holder of an airline transport pilot (ATP) certificate. The FAA alleged that "the three had conspired to obtain certified flight instructor (CFI) certificates for Porterfield and Alava that were approved and issued by applicant Khoyan (who was, at that time, an FAA inspector), when the required ground and flight tests were not given or were not given properly." After a hearing, the ALJ reversed the FAA's emergency revocation of the airmen's certificates finding that the airmen had not intentionally falsified any documents. The ALJ also made the statement that the FAA should never have brought the case.

Although the FAA appealed the ALJ's decision, the full Board upheld the ALJ's findings. The Board's decision was based upon the deference it is required to give to the credibility determinations made by the ALJ at the hearing. However, the Board also noted that its "decision not to overturn the law judge’s credibility assessment should not be read to suggest that we endorse his comment that the case 'should never have been brought.'"

Subsequently, the airman submitted an application for attorneys fees under the Equal Access to Justice Act ("EAJA"). The ALJ granted fees and expenses finding that the FAA had pursued a "weak and tenuous" case, that the Administrator lacked substantial justification, and that she "had no facts or evidence to support her claim". The FAA then appealed the ALJ's award of fees.

On appeal, the Board held that the FAA had met the substantial justification test under which "the facts alleged must have a reasonable basis in truth, the legal theory propounded must be reasonable, and the facts alleged must reasonably support the legal theory." It stated that "[g]iven the significant documentary evidence apparently indicating that applicants engaged in a scheme to obtain improper certificates, including the evidence that there was insufficient time for the ground and flight tests to have been completed properly, the Administrator was justified in proceeding to a hearing." The Board concluded that the FAA had a reasonable basis in fact and law for each of the claims against each of the airmen.

Although Board member Hersman did not concur in the Board's decision, she commented "I am concerned about the precedent we seem to be setting with respect to EAJA cases and credibility determinations. The ALJs are properly charged with evaluating all aspects of cases; therefore their judgment regarding credibility is a significant matter. However, I do not believe the EAJA awards in this case hinge on credibility, as evidenced by the decision of Chief Judge Fowler to award the EAJA fees to the respondents."

Her comment highlights the fact that, absent a clear statement by the ALJ as to whether credibility was the sole basis for the ALJ's decision, the Board is required to make that determination even though the Board did not participate in the hearing. In effect, the Board is required to "guess". Perhaps the potential for this type of guessing and/or confusion could be reduced or eliminiated if the ALJ's included a more specific explanation of the basis for their decision in their opinions? Or maybe the Board would continue to find ways to justify support for the FAA in spite of such statements? Time will tell whether the precedent noted by Board member Hersman will continue.

Posted by Greg

April 21, 2005

AC 23-21, Airworthiness Compliance Checklists Used to Substantiate Major Alterations for Small Airplanes, Updated With Change 1

The FAA notes that the most significant change is the revision requiring that the Aviation Safety Inspector in the Flight Standards District Office must now sign instead of an Airframe and Powerplant mechanic in order to return an aircraft to service after major alteration. The other changes are considered minor.

Posted by Greg

April 20, 2005

DOT Publishes Proposed Rule On Nondiscrimination On The Basis Of Disability In Air Travel

The Department of Transportation today published a Proposed Rule containing a Technical Assistance Manual ("TAM") for air carriers and individuals with disabilities concerning their rights and responsibilities under the Air Carrier Access Act and DOT regulations. The TAM is intended "to provide guidance to air carriers' employees and contractors who provide services, facilities, and accommodations to passengers with disabilities. The manual should give air carriers a better understanding of their responsibilities under the law and a greater awareness about the perspective of an air traveler with a disability, particularly through Chapter 7 titled ``Interacting with People with Disabilities''. This manual is also designed to provide air travelers with disabilities useful information about their rights."

The DOT is seeking comments and public input on the TAM. Any comments to the TAM are due no later than May 20, 2005. However, it should also be noted that a notice of proposed rulemaking ("NPRM") revising Part 382 and extending it to cover foreign air carriers, has been published and the Department is also currently working on two separate NPRMs which address possible additional accommodations for: (1) Passengers who are deaf, hard of hearing and deaf-blind; and (2) passengers who require inflight medical oxygen. If final rules are issued based upon any of these NPRM's, the TAM will require additional revisions.

The Department of Homeland Security Office of Inspector General released its follow-up report regarding the performance of airport passenger/baggage screeners. The Audit Report details the inspector general's testing regarding the performance of airport passenger/baggage screening by TSA employees and concludes that we really aren't that much safer than we were back in 2003 when the inspector general initially evaluated airport screening.

In preparing the report, the inspector general teams conducted "hundreds of screening checkpoint and checked baggage tests at airports of different sizes and annual passenger loads." "A 'test' at a passenger screening checkpoint was defined as one tester attempting to take one threat object through the checkpoint into the sterile area undetected on his or her body or in his or her carry-on bag. A 'test' at a checked baggage location was defined as one or two testers introducing a bag with a simulated IED in it, and contamination on the outside, into the checked baggage system." If the threat objects were detected and prevented from entering the secure area, the screeners "passed". If the threat object made it through the screening to the secure area the screeners "failed".

The inspector general concluded that "despite the fact that the majority
of screeners with whom our testers came in contact were diligent in the performance of their duties and conscious of the responsibility those duties carry, the lack of improvement since our last audit indicates that significant improvement in performance may not be possible without greater use of new technology." Based upon this conclusion, the inspector general recommended "TSA to expedite its testing programs and give priority to
technologies, such as backscatter x-ray, that will enable the screening workforce to better detect both weapons and explosives."

TSA's response to the report was that "[w]e agree with the IG’s conclusion that significant improvements in performance will only be possible with the introduction of new technology. That said, we will continue to seek incremental gains in screener performance through training, testing and management practices."

Unfortunately, this report confirms, the limited effectiveness of the current airport screening systems and doesn't really tell us anything new. And TSA apparently agrees. This certainly doesn't instill any further confidence in those systems. In the end, I suspect this report will simply be used in support of a TSA budget request for more money to allocate to research and/or technology for use in airport screening. This isn't necessarily bad, but it doesn't solve the current issue of TSA's excessive budget to fund less than secure airport screening.

Posted by Greg

April 18, 2005

FAA Publishes Light-Sport Aircraft Consensus Standards

The FAA today published a Notice of availability for the consensus standard relating to the provisions of the Sport Pilot and Light-Sport Aircraft rule. That rule was issued July 16, 2004 and is effective September 1, 2004. The FAA participated with the ASTM
International Committee F37 on Light Sport Aircraft to develop these standards. The Notice indicates that the FAA finds the "ASTM Designation F2483-05, titled: Standard Practice for
Maintenance and the Development of Maintenance Manuals for Light Sport
Aircraft" is acceptable for certification of the specified aircraft under
the provisions of the Sport Pilot and Light-Sport Aircraft rule.

The Notice also states that "any light-sport aircraft issued a special light-sport airworthiness certificate, which has been designed, manufactured, operated and maintained, in accordance with this and previously accepted ASTM consensus standards
provides the public with the appropriate level of safety established under the regulations."

Since the consensus standard is copyrighted by ASTM International, 100
Barr Harbor Drive, PO Box C700, West Conshohocken, PA 19428-2959 you may obtain a copy by contacting ASTM at this address, or at (610) 832-9585
(phone), (610) 832-9555 (fax), through service@astm.org (e-mail), or
through the ASTM Web site. You may also purchase a copy of the standard directly from ASTM here.

Comments to this Notice must be received on or before June 17, 2005 and may be mailed to: Federal Aviation Administration, Small Airplane Directorate, Programs and Procedures Branch, ACE-114, Attention: Larry Werth, Room 301, 901 Locust, Kansas City, Missouri 64106 or e-mailed to: Comments-on-LSA-Standard@faa.gov. All comments must be marked: Consensus Standards Comments, and must specify the standard being addressed by ASTM designation and title.

Posted by Greg

April 15, 2005

FAA Its Own Worst Enemy?

The U.S. General Accounting Office (GAO) released a report April 13, 2005 titled NATIONAL AIRSPACE SYSTEM: Experts’ Views on Improving the U.S. Air Traffic Control Modernization Program in which the GAO indicates that resistance to change is present at all levels of the FAA and that the resistance has seriously hindered the needed modernization of the nation's air traffic control system. The report was drafted by a panel of experts, inlcuding former high-level FAA officials, economists, academics and industry experts, who were selected by the GAO to review the FAA's progress at modernizing the ATC system.

The panel indicated that the "resistance is a characteristic of FAA personnel at all levels" and "management, in the experience of some panelists, is more resistant than employees who may fear that technologies will threaten their jobs." Additionally, the panel noted that the FAA has a shortage of in-house technical expertise which it has had to supplement with outside contractors.

The panel's general conclusions are that (1) Cultural and Technical Factors Have Impeded ATC Modernization; (2) Budgetary Factors Have Constrained ATC Modernization; and (3) Short-term and Longer Term Changes Could Promote Success. Ironically, these issues and the changes suggested by the panel are really no different than the issues that face many businesses today. These observations are not new, however. Many critics have suggested that government would not have the serious budgetary issues it does if it were operated more like a business.

So far, the FAA has not commented on the report. It will be interesting to hear the FAA's response, if any. For a more detailed explanation of the panel's finding, you can read the 46 page report here

In a recent FAA civil penalty decision, the FAA has been put on notice that it needs to provide proof of Respondent's receipt of the civil penalty complaint in response to Respondent's appeal of an order entered by default. In In Re The Matter Of James Ray Lewis, the administrative law judge entered an order assessing a $16,500.00 civil penalty against Mr. Lewis because he failed to respond to the FAA's complaint. Altough Mr. Lewis had sent a letter requesting a hearing after receiving the FAA's final notice of proposed civil penalty, Mr. Lewis did not submit an answer to the FAA's complaint.

Under the Rules of Practice for civil penalty actions (14 C.F.R. § 13.209(a)), a respondent is required to file an Answer, admitting or denying every allegation in the Complaint, no later than 30 days after the FAA served the Complaint. When no answer was filed, the ALJ "construed Mr. Lewis’s silence both as a constructive withdrawal of his request for hearing and as an admission of the Complaint’s allegations."

After entry of the order assessing civil penalty, Mr. Lewis then sent a letter to the Appellate Docket Clerk, requesting assistance. He did not, however, submit an appeal brief as required by 14 C.F.R. § 13.233. Yet, in the absence of an appeal brief, the Administrator construed Lewis’s letter as a notice of appeal and an appeal brief because the letter contained enough information and argument to explain the basis of Lewis’s appeal: that he did not receive the Complaint.

The Order goes on to suggest that the FAA's reply brief address: (1) whether the FAA has any evidence that Lewis received the complaint; (2) if not, whether the FAA properly address the complaint; and (3) if Lewis did not receive the complaint, should the ALJ’s order assessing a civil penalty be reversed so as to give the FAA an additional opportunity to serve the complaint and then give Lewis an opportunity to file an answer.

It is nice to see that, on occasion, respondents are given a break and the FAA is called to task for its actions. Maybe it had something to do with Mr. Lewis's statement in his letter that he wanted to clear the matter up before re-deploying to Iraq. Regardless, if in fact he did not receive the complaint through no fault of his own, hopefully he will receive his opportunity to be heard on the underlying allegations.

The FAA today published Notice of Issuance of Advisory Circular for "Change 1" to AC 23-15A, Small Airplane Certification Compliance Program. "Change 1 to AC 23-15A deletes the fourth sentence in paragraph 5n(2)(e) and deletes ``fatigue properties'' in fifth sentence in paragraph 5n(2)(e). This change is required since the paragraph was misinterpreted by some, to mean that no fatigue testing is required for composites. A parallel was drawn between the failure phenomenon (at a micro level) of wood and
composites. Since the comparison created confusion, all mention of composites is eliminated."
Change 1 was issued on March 15, 2005 and, although Change 1 is not yet available online, when it is it you will be able to find it here with all of the other published Advisory Circulars.

On Friday April 8, 2005, the NTSB issued a Safety Recommendation containing three separate recommendations for the FAA to improve its oversight over Part 135 commercial operators. The recommendations arose out of the NTSB's investigation of the July 13, 2003 crash of an Air Sunshsine Cessna 402C. The aircraft was ditched in the Atlantic Ocean about 7.35 nautical miles west-northwest of Treasure Cay Airport, Treasure Cay, Great Abaco Island, Bahamas, after the in-flight failure of the right engine.

The NTSB found that the probable cause of the accident was "the in-flight failure of the right engine and the pilot’s failure to adequately manage the airplane’s performance after the engine failed." The Board also determined that "the right engine failure resulted from inadequate maintenance that was performed by Air Sunshine’s maintenance personnel during undocumented maintenance." A copy of the Board's factual report is available online here.

During the course of its investigation, the NTSB found several deficiencies in the FAA's oversight of Air Sunshine which raised concerns regarding the FAA's oversight of other Part 135 commercial operators. As a result, the NTSB has recommended that the FAA:

1. Review the procedures used during its oversight of Air Sunshine, including those for the Surveillance and Evaluation Program and Regional Aviation Safety Inspection Program, to determine why the inspections failed to ensure that operational and maintenance issues that existed at the company were corrected. On the basis of the findings of this review, modify Part 135 inspection procedures to ensure that such issues, including maintenance record-keeping and practices, are identified and corrected before accidents occur. (A-05-08)

2. Develop specific criteria regarding the number of accidents and/or incidents that would cause an increase in oversight of an operator. (A-05-09)

3. Review and revise the process through which the transfer of a Part 135 air carrier’s operating certificate from one Flight Standards District Office to another is granted to ensure the adequate oversight of such carriers. Further, ensure that, before granting an operator’s request to transfer an operating certificate, appropriate geographic oversight is in place at the new office and that the justification for the transfer has been adequately documented and reviewed. (A-05-10)

For a more detailed explanation of the NTSB's investigation into the Air Sunshine crash and the specific deficiencies uncovered by the NTSB, you should read the full Safety Recommendation.

Posted by Greg

April 07, 2005

U.S. Customs And Border Protection Publishes Final APIS Rule

The U.S. Customs and Border Protection (CBP) today published its Final Rule concerning the Advanced Passenger Information System (APIS). The APIS rule requires "the electronic transmission of manifest information for passengers and crew members onboard commercial vessels and aircraft, in advance of arrival in and departure from the United States, and for crew members and non-crew members onboard commercial aircraft that continue within (foreign air carriers only) and overfly the United States, in advance of the departure of those flights."

Air carriers are required to provide certain travel itinerary data, aircraft/flight, and personal identification information, including name, gender, date of birth, citizenship, travel document data, and status onboard the aircraft. APIS data must be submitted: (i) For passenger flights into the United States, 15 minutes after departure from a foreign port or place; (ii) for passenger flights departing the United States, 15 minutes prior to departure from the United States; (iii) for crew members (on passenger and all-cargo flights) and non-crew members (limited to all-cargo flights), 60 minutes prior to the departure of any covered flight from a foreign port, the U.S. port of departure, or the U.S. port of arrival en route to a second U.S. port, as applicable.

The Final Rule is organized into seven sections: I. The Customs Interim Rule--Summary of rule published in the Federal Register on December 31, 2001; II. The INS NPRM--Summary of INS NPRM published on January 3, 2003; III. TSA Requirements--Provisions incorporated into this final rule in order to assist TSA in carrying out its aviation security responsibilities with respect to crew members and non-crew members of commercial aircraft; IV. Governmental Reorganization Pursuant to the Homeland Security Act--Discussion of the new Department of Homeland Security and its effect in combining the border security and inspectional functions of Customs and INS into one agency; V. Discussion of Comments--Discussion of comments received by CBP in response to the Customs Interim Rule and the INS NPRM; VI. Changes to the Interim and Proposed Regulatory Texts--Summary of changes made to the Customs Interim Rule and the INS NPRM in this final rule, including changes made to assist TSA; and VII. Conclusion. The Final Rule is effective June 6, 2005. If you would like more information regarding the Final Rule, contact Tricia Kennedy (202) 344-1229 or Charles G. Perez (202-344-2605), Office of Field Operations, Bureau of Customs and Border Protection.

In connection with the Final Rule, the Department of Homeland Security also published a Notice containing a privacy impact assessment and privacy policy for APIS. The Notice provides a detailed explanation of the APIS system and the collection, use, disclosure and retention of the passenger data collected.
Comments regarding the privacy issues are due on or before May 9, 2005 and may be submitted using any of the methods indicated in the Notice. For more information regarding the privacy notice, you can contact Charles Perez, Program Manager, Office of Field Operations, Bureau of Customs and Border Protection at (202) 344-2605 or Nuala O'Connor Kelly, Chief Privacy Officer, Department of Homeland Security at (202) 772-9848.

Posted by Greg

April 06, 2005

FAA To Hold Collaborative Traffic Flow Management Sessions

In anticipation of the upcoming severe weather season (thunderstorms, tornadoes etc.), the FAA ATC System Command Center will be holding "training" sessions to review procedures and discuss new initiatives and regional issues. These events are being called Collaborative Traffic Flow Management sessions.

The schedule is as follows: 05/17 and 5/18 @ Business Jet Center, DAL; 05/24 and 5/25 @ Honeywell Corporate Headquarters, Morristown NJ; 6/15 and 6/16 @ America West Headquarters, Phoenix AZ. NBAA will be hosting the two May events. Although each location will host a “two-day” event, the day one session will be repeated on day two, so attendance at only one of the days would be required.

The sessions will involve panel discussions with FAA and customer representatives focusing on both national and regional issues. The customer panel will have airline dispatchers and also business aviation schedulers, dispatchers, and pilots.

The sessions are free and lunch will be provided at the NBAA sponsored events. Space is limited so if you would like to attend, you need to RSVP to NBAA at jdamato@nbaa.org and include your name, company, phone number, and job title.

In a Notice of Proposed Rulemaking published today, the FAA is seeking comments on whether the rules governing computer reservation system (CRS) operations should be terminated and whether it should also terminate the rules governing the treatment of code-sharing airlines that own, control, or operate a CRS. Currently 14 CFR 255 prohibits discrimination by airlines that own, control or operate a CRS and regulations in 14 CFR 256 prohibits unfair and deceptive practices and unfair methods of competition by airlines engaged in code-sharing arrangements.

The FAA now feels that the airline marketplace has changed to such an extent that these regulations are no longer necessary. The growth of internet ticket purchasing and the divestiture by most airlines of their ownership in CRS's has greatly eliminated the possible anti-competitive conduct these regulations were intended to prohibit.

The FAA is requesting interested persons to provide them with detailed
information about the possible consequences of this proposal, including
its benefits, costs, and economic and competitive impacts. Comments must be submitted on or before May 4, 2005 and reply comments must be submitted on or before May 19, 2005. You may submit comments using the usual methods.

More information regarding the history of the current regulations and a detailed explanation of the FAA's analysis supporting removal of the current prohibitions are available in the Notice of Proposed Rulemaking.

Posted by Greg

April 01, 2005

Cellular Telephones And Portable Electronic Devices On Aircraft

With the current debate regarding removal of the current prohibition on using cellular telephones in flight, I thought it would be a good time to address the current state of the law regarding how and when you can use such things as cellular telephones, personal digital assistants (PDA's) and laptop computers in flight. You can read more about this topic here.

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